Free Letter - District Court of Delaware - Delaware

Case 1:05-cv-00567-GMS

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Joseph N. Gielata
501 Silverside Road, Suite 90 Wilmington, Delaware 19809 www.gielatalaw.com tel (302) 798-1096 fax (302) 397-0730

attorney at law

December 9, 2005 BY ELECTRONIC FILING The Honorable Gregory M. Sleet United States District Court District of Delaware 844 N. King Street, Lockbox 19 Wilmington, DE 19801 Re: Dear Judge Sleet: I am the plaintiff in the above-referenced matter. At the request of the Clerk of the Court, I write to bring an unusual administrative issue to the Court's attention. This action was commenced on August 2, 2005 in the Eastern District of Pennsylvania, on which date there was a hearing on plaintiff's motion for a temporary restraining order. Senior Judge Norma L. Shapiro (i) denied the motion, (ii) sua sponte dismissed the State of Delaware (the "State") as a defendant on Eleventh Amendment grounds, (iii) sua sponte dismissed another defendant pursuant to 10 Del. C. § 4001, (iv) upheld the Court's jurisdiction over claims against the remaining defendants and (v) transferred the action to this District pursuant to 28 U.S.C. § 1404(a). (D.I. 5 # 7.) Presently sub judice is a motion for reconsideration of the dismissal of the State. (D.I. 8.) To obviate any objection by the State concerning service of process (D.I. 10 ¶ 7), I obtained summonses for the State from the Clerk of the Court and caused them to be served on the appropriate persons.1 Enclosed herewith please find copies of the summonses, executed by the process server. Herein lies the problem. In light of its dismissal, the State was not entered as a party into the CM/ECF system upon the transfer of the action to this District, and thus the Clerk of the Court is unsure of how to process filings relating to the State, such as the aforesaid summonses. Accordingly, any guidance from the Court on this issue would be appreciated. Gielata v. Rocanelli, et al., Case No. 1:05-cv-567

1

Although Fed. R. Civ. P. 4(j)(2) only calls for service by delivery to the State's chief executive officer, in an abundance of caution, an additional summons and complaint was served upon the State's Attorney General to obviate any objection based upon 10 Del. C. § 3103(c).

Case 1:05-cv-00567-GMS The Honorable Gregory M. Sleet December 9, 2005, page 2

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If Your Honor has any questions or requires further elaboration regarding this matter, I am available at the Court's convenience. Respectfully, /s/ Joseph N. Gielata (#4338)

Enclosures cc: Clerk of Court Richard W. Hubbard, Esq.

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